I've written twice before (here and here) about the sexual assault trial of former University of Minnesota football player Dominic Jones. The case has already raised a number of interesting evidentiary issues, including (1) whether Jones could introduce evidence that the alleged victim had sex with three other U Minn. football players before coming into contact with Jones on the night of the alleged assault, (2) whether a cell phone video recording of the alleged assault would be admissible, and (3) whether Jones could introduce testimony by a "sexologist" about what it means to ejaculate on another person.

Now, the judge hearing the case, Hennepin County District Judge Marilyn B. Rosenbaum, has made a fourth evidentiary ruling, which could result in a reversal should Jones be convicted. One of the witnesses called by the prosecution in Jones' case was Robert McField, a former U Minn. defensive end. McField testified that on the night of the alleged assault, he saw Jones on top of a nineteen year old girl, making a "sexual motion." On cross-examination, however, Jones' defense counsel Earl Gray, was able to get McField to admit that he did not see any penetration. The distinction is important to Jones because one of the elements of the charge against him is that he "engaged in sexual penetration" with the alleged victim. And while the jury has seen the aforementioned cell phone video of the incident, the recording does not show any penetration.

Gray, however, was partially foreclosed by Judge Rosenbaum in another attempt to undermine McField's testimony. You see, McDaniel is currently serving a twelve year sentence in Missouri based upon a felony armed robbery conviction. Gray wanted to impeach McDaniel through this conviction, but Judge Rosenbaum merely allowed McDaniel to testify that he had a conviction and precluded any testimony about the nature of the conviction. Was this proper?

Well, under Minnesota Rule of Evidence 609(a)(1), "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted...if...the crime...was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect." Apparently, Judge Rosenbaum felt it was a close call whether the probative value of McField's conviction outweighed its prejudicial effect, which is why she allowed testimony that he had "a conviction" but no testimony about the type of conviction.

Now, it's impossible for me to tell the exact probative value of the conviction and its exact prejudicial effect without knowing the full facts of the case, but if McDaniel's act of armed robbery was merely a crime of violence without any deception, his conviction likely would not have a very high probative value on the issue of veraicty. Even if that's the case, though, is it enough to justify Judge Rosenbaum's ruling?

As a disclaimer, Federal Rule of Evidence 609(a)(1) is slightly different from Minnesota Rule of Evidence 609(a)(1), but I think that the purposes behind the two Rules are the same: the Rules' drafters wanted convictions to be used as impeachment evidence but did not want them used as character evidence. Thus, for instance, if a defendant testifies in his trial for armed robbery, a judge would almost certainly preclude the prosecution from impeaching him through a prior armed robbery conviction for fear that the jurors would use the conviction not merely to doubt his testimony but also as evidence that the defendant had a propensity to commit violent robberies and that he likely acted in conformity with that propensity at the time in question.

When, however, should a judge preclude defense counsel from impeaching a prosecution witness or limit such impeachment? According to the Advisory Committee Note to Rule 609, the answer is not very often. The Note indicates that "[t]he probability that prior convictions of an ordinary government witness will be unduly prejudicial is low in most criminal cases. Since the behavior of the witness is not the issue in dispute in most cases, there is little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence. Thus, trial courts will be skeptical when the government objects to impeachment of its witnesses with prior convictions."

Here, McDaniel was not an alleged participant in the sexual assault but was instead a mere bystander. Thus, his behavior was not at issue, making it likely that Judge Rosenbaum should have allowed defense counsel to impeach him fully.